Lawyer loses bid to quash Zondo findings

Wellington lawyer Duncan Korabie has lost his bid to review and set aside the findings of the Zondo commission, which recommended he be investigated. Korabie told the Cape Times on Thursday that he intended to file for leave to appeal to the Supreme Court of Appeal.

Korabie came into focus at the commission as a result of allegations of fraud levelled against Alexkor, which had formed a joint venture with the Richtersveld community to explore the mineral riches in the area. Korabie was the legal advisor for the Richtersveld community in the Northern Cape.

The joint venture was to award a tender to an independent contractor to mine and market the joint venture’s diamonds. Korabie was part of the tender committee. Several companies were established to deal with the affairs of the community, including the Richtersveld Mining Company (RMC) which dealt specifically with the community’s mineral rights.

RMC, in turn, formed what was referred to as a Pooling and Sharing Joint Venture (PSJV) with Alexkor to explore the land and marine mining rights held by each, respectively. According to court documents, most of the business or activities of the PSJV, such as the mining and marketing of the diamonds, were outsourced.

The independent contractors who rendered these services were appointed pursuant to a tender process. In 2014 the contract for the mining and marketing of diamonds sourced at Alexkor expired. A list of 35 bidders was prepared and a tender committee meeting was scheduled for December 11, 2014 in Joburg to choose one successful tenderer.

Court documents state that before the start of the meeting, Korabie was informed that only one tenderer, Scarlett Sky Investments 60 (Pty) Ltd (SSI) provided for local beneficiation of the diamonds and a concomitant significant community investment. During March 2015 he was informed that the PSJV had appointed SSI through a round-robin board resolution.

He disputed that he agreed to the appointment and advised that he had only agreed to a conditional appointment of SSI pending a due diligence investigation. Court papers state that he later conducted his own investigation and discovered that SSI was a shelf company. In early January 2021, he received correspondence from the commission to provide information for its inquiry in relation to the affairs of the Richtersveld community and Alexkor.

There was further communication between Korabie and the commission with regards to him testifying but Korabie says that was the last he heard until he found out his name was mentioned in the state capture report. “Having regard to the doctrine of ripeness, the lack of prejudice suffered by the applicant and the checks and balances in place in the form of further investigations and/or court proceedings, we are of the view that the application is not ripe for hearing at this stage.

“The applicant has not made out a case for the relief he seeks and the application is dismissed,” Judges Mokgoatji Dolamo and Hayley Slingers found. Korabie told the Cape Times he was deeply disappointed by the “unwillingness of the judges to do their work without fear, favour or prejudice regardless of who the parties are that appear before them”.

“I had difficulty from the outset in bringing the matter. Four judges later, two who initially refused to hear the matter, and the matter is disposed of on preliminary issues. Be that as it may, this is the hand I have been dealt and I have indicated to the judges that I intend proceeding with an appeal. Nowhere in the judgement is any reference made to the fact that the commission did not oppose the application.

“On the merits of the matter: I availed myself to testify to the commission and subject myself to cross examination and the commission refused to hear me but proceeded to make an adverse finding after making a finding on the facts before it,” Korabie said. Both Alexcor and the commission did not respond to requests for comment by deadline.